Joint Circular No. 58/2003/TTLT-BVHTT-BTC guides the protection of copyright at customs authorities for exported and imported goods.

JOINT CIRCULAR

Guidelines for protecting copyright at customs authorities for exported and imported goods

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Based on the Civil Code of the Socialist Republic of Vietnam dated October 28, 1995;

Based on the Customs Law No. 29/2001/QH10 dated June 29, 2001;

Based on Decree No. 76/CP dated November 29, 1996 of the Government guiding the implementation of certain provisions on copyright in the Civil Code (hereinafter referred to as Decree No. 76/CP);

Based on Decree No. 60/CP dated June 6, 1997 of the Government guiding the implementation of certain provisions of the Civil Code regarding civil relations involving foreign elements (hereinafter referred to as Decree No. 60/CP);

Based on Decree No. 101/2001/NĐ-CP dated December 31, 2001 of the Government detailing the implementation of certain articles of the Customs Law on customs procedures and customs inspection and supervision systems (hereinafter referred to as Decree No. 101/2001/NĐ-CP).

The Ministry of Culture and Information, the Ministry of Finance provide guidelines for protecting copyright at customs authorities for exported and imported goods related to copyright as follows:

I. EXPLANATION OF TERMS

Some terms used in this Circular are understood as follows:

1. "Author" refers to those persons specified in Article 745 of the Civil Code.

2. "Owner of the work" refers to individuals and organizations specified in Article 746 of the Civil Code.

3. "Works protected in Vietnam" include types of works protected as specified in Article 747 of the Civil Code and Clause 4 of Decree No. 76/CP; not containing content as stipulated in Clause 1 of Article 749 of the Civil Code and are one of the following works:

3.1. Works of authors who are Vietnamese citizens;

3.2. Works owned by Vietnamese citizens, juristic persons, and organizations;

3.3. Works of foreigners, foreign juristic persons created and expressed in a definite material form in Vietnam;

3.4. Works of foreigners, foreign juristic persons first published and disseminated in Vietnam;

3.5. Works of foreigners, foreign juristic persons protected in Vietnam according to international treaties to which Vietnam has signed or acceded.

Protected works must be expressed in a definite material form, regardless of the form, language of expression, quality of the work, whether they have been published or not, and whether they have been granted or not granted a Certificate of Copyright Ownership.

4. "Publication, dissemination of works" means presenting works to the public in forms such as presentation, display, publication, performance, broadcasting, television, and other material forms.

5. "Works first published and disseminated in Vietnam" are works of foreigners, foreign juristic persons that have not been published or disseminated in any country before being published or disseminated in Vietnam.

A work is considered to be first published and disseminated in Vietnam when it is published or disseminated in Vietnam within thirty days from the date it was first published or disseminated in any country.

6. "Temporary suspension of customs procedures" means the customs authority temporarily does not process customs procedures for a consignment of exported or imported goods when there is suspicion of copyright infringement.

7. "Clearance" means the customs authority decides to allow the export or import of goods.

8. "Exported and imported goods infringing copyright" are goods exported or imported that violate the personal rights and property rights of authors and owners of works, including the following goods:

8.1. Exported and imported goods are copies of works whose production and/or circulation of copies were not authorized by the owner of the work.

8.2. Exported and imported goods are copies of works containing content that violates copyright.

II. SUBJECTS ENTITLED TO REQUEST AND SCOPE OF COPYRIGHT PROTECTION AT CUSTOMS AUTHORITIES

1. Subjects entitled to request copyright protection at customs authorities:

The following subjects may request customs authorities to protect copyright:

1.1 Authors and owners of works with works protected in Vietnam;

1.2 Individuals and organizations granted permission to use works protected in Vietnam;

1.3 Individuals and organizations providing copyright service functions authorized by the subjects mentioned in Points 1.1 and 1.2 of Section II of this Circular;

1.4 Collective management organizations for copyrights related to the above.

2. Scope of copyright protection by customs authorities:

This Circular applies to all exported and imported goods related to protected copyrights, except for the following cases:

2.1 Goods for humanitarian aid;

2.2 Temporary imported-reexported goods for the use and living activities of foreign organizations and individuals during their stay in Vietnam;

2.3 Temporary imported-reexported goods, temporary exported-reimported goods for exhibition, display, product introduction, or to help consumers distinguish and identify counterfeit goods;

2.4 Transit goods;

2.5 Gifts and presents within tax-exempt limits; Personal luggage as prescribed by the Customs Law.

III. PROCEDURES FOR IMPLEMENTING COPYRIGHT PROTECTION AT CUSTOMS AUTHORITIES

1. Submitting a request for copyright protection at customs authorities (hereinafter referred to as "Request for Protection"):

To be protected by customs authorities, the subjects mentioned in Point 1 of Section II of this Circular (hereinafter referred to as "the requester") may submit a Request for Protection in accordance with Point 1.1 or 1.2 of Section III of this Circular:

1.1 Submitting a long-term protection request: In cases where there is no information about a specific consignment of exported or imported goods infringing copyright, the requester may submit a long-term protection request along with the following documents:

1.1.1. Request for Protection of Copyright at Customs Authorities (in the format attached as Appendix 1 to this Circular).

1.1.2. Power of Attorney (if the requester is one of the subjects specified in Point 1.3 and 1.4 of Section II of this Circular).

1.1.3. Documents proving the right to request:

1.1.3.1. Certificate of Copyright Ownership (if available). If requesting protection without a Certificate of Copyright Ownership, the requester must prove and affirm their copyright ownership over the requested work in the Request for Protection.

1.1.3.2. Contract for the use of the work (in cases where the applicant is among the subjects specified in point 1.2, Section II of this Circular);

1.1.3.3. Documents proving the transfer or inheritance of copyright (in cases where the applicant is among those who have been transferred or inherited rights);

1.1.3.4. Other documents proving the applicant's claim under Vietnamese law or international treaties to which Vietnam is a party (in cases where the author or owner of the work is specified in points 3.3., 3.4., and 3.5. of Section I of this Circular);

1.1.4. A description of the work and samples or photographs of the work, clearly indicating distinguishing features to differentiate between infringing goods and non-infringing goods.

1.1.5. Advance payment or a guarantee document from a financial institution to ensure payment of costs and damages arising from the customs authority temporarily suspending procedures for exported or imported goods at the request of the applicant if the suspended goods are determined not to infringe copyright. The advance payment or guarantee document in this case shall be as follows:

1.1.5.1. An advance payment of a specific amount, at least: twenty million Vietnamese dong; or

1.1.5.2. A guarantee document for a specific amount, at least: fifty million Vietnamese dong; or

1.1.5.3. A guarantee document from a financial institution committing to pay all costs and damages arising from the customs authority temporarily suspending procedures for exported or imported goods at the request of the applicant if the suspended goods are determined not to infringe copyright.

In cases where the applicant has submitted a Request for Protection Form to the customs authority according to the form prescribed in point 1.1 of Section III of this Circular but later receives information about a specific consignment suspected of infringing their copyright, they may also submit a Request for Protection Form according to the specific case to the customs authority that has temporarily suspended procedures for the consignment suspected of infringing copyright as stipulated in point 1.2 of Section III of this Circular. In such cases, the applicant is exempted from the documents and materials prescribed in point 1.2.4 of Section III of this Circular.

1.2. Submitting a Request for Protection Form according to a specific case: In cases where there is suspicion of a specific consignment of exported or imported goods infringing copyright, the applicant submits a Request for Protection Form to request the customs authority to temporarily suspend customs procedures for a specific consignment of exported or imported goods mentioned in the Request for Protection Form. The Request for Protection Form shall be accompanied by the following documents:

1.2.1. A Request for Protection of Copyright Form at the customs authority (according to the model attached as Appendix 1 to this Circular), specifying detailed information about the specific consignment being requested to be temporarily suspended, sufficient for the customs authority to identify the consignment, such as: name and address of the exporter, importer; exporting, importing country; country of origin of the consignment; mode of transport, details of the means of transport, shipping company, bill of lading number; expected export, import port; expected customs office handling the procedures; detailed description of the suspected goods or samples or photographs of the suspected goods; name of the producer, distributor of the suspected infringing goods.

1.2.2. Initial evidence of suspicion that exported or imported goods infringe copyright, such as:

1.2.2.1. The origin of the consignment does not belong to countries, regions; individuals, organizations permitted to produce legal copies of the work;

1.2.2.2. Samples or photographs of infringing copies (if available).

1.2.3. Advance payment or a guarantee document from a financial institution to ensure payment of costs and damages arising from the customs authority temporarily suspending procedures for exported or imported goods at the request of the applicant if the suspended goods are determined not to infringe copyright. The advance payment or guarantee document in this case shall be as follows:

1.2.3.1. An advance payment or guarantee document equivalent to 20% of the value of the consignment according to the price stated in the contract deposited into the temporary deposit account of the customs authority at the State Treasury; or

1.2.3.2. An advance payment or guarantee document of a specific amount, at least twenty million Vietnamese dong (in cases where the value of the suspected infringing consignment is unknown); or

1.2.3.3. A guarantee document from a financial institution committing to pay all costs and damages arising from the customs authority temporarily suspending procedures for exported or imported goods at the request of the applicant if the suspended goods are determined not to infringe copyright.

1.2.4. Documents and materials prescribed in points 1.1.2, 1.1.3, 1.1.4 of Section III of this Circular.

1.3. The applicant must pay the fee as prescribed by the Ministry of Finance.

2. Acceptance and Processing of Requests for Protection

2.1. Authorities accepting and processing Requests for Protection:

2.1.1. The General Department of Customs accepts applications in cases where the application is submitted according to the form prescribed in point 1.1 of Section III of this Circular if the scope of the request for the customs authority to enforce protection falls within the jurisdiction of two or more provincial or city-level Customs Departments.

2.1.2. Provincial or City Customs Departments accept applications for the forms of submission prescribed in points 1.1; 1.2 of Section III of this Circular if the scope of the request for the customs authority to enforce protection falls within the jurisdiction of a provincial or city-level Customs Department.

2.1.3. District Customs Departments accept applications for the forms of submission prescribed in points 1.1; 1.2 of Section III of this Circular if the scope of the request for the customs authority to enforce protection falls within the jurisdiction of that District Customs Department.

2.2. Acceptance and Processing of Requests for Protection:

After receiving the Request for Protection, the customs authority must review the application and accompanying documents to decide whether to accept the Request for Protection.

2.2.1. Conditions for accepting the Request for Protection:

2.2.1.1. The applicant is a person entitled to submit a Request for Protection as prescribed in point 1 of Section II of this Circular;

2.2.1.2. The content of the request for protection falls within the scope of the applicant's rights;

2.2.1.3. The time limit and timing of the request for protection fall within the period for protecting copyright as prescribed in Article 766 of the Civil Code, Article 14 of Decree No. 76/CP, bilateral agreements, and international treaties to which Vietnam is a party.

2.2.1.4. The work seeking protection must be a work protected in Vietnam;

2.2.1.5. The application for protection and accompanying documents must contain sufficient information for customs to have a basis to implement measures to protect copyright as stipulated in this Circular;

2.2.1.6. The person requesting shall submit a guarantee deposit or a letter of guarantee from a credit institution as prescribed in Point 1.1.5 or 1.2.3 Section III of this Circular;

2.2.2. Time limit for accepting applications for protection;

2.2.2.1. For applications for protection submitted pursuant to Point 1.1 Section III of this Circular, acceptance or non-acceptance thereof must be notified in writing to the applicant within ten days. In cases of non-acceptance, the reasons for non-acceptance must be clearly stated;

2.2.2.2. For applications for protection submitted pursuant to Point 1.2 Section III of this Circular, if the application is not accepted, it must be immediately notified to the applicant on the same day and the reasons for non-acceptance must be clearly stated. Such notification shall be made by fax or telephone, and simultaneously sent in writing to the applicant;

3. Inspection and detection of goods suspected of infringing copyrights when exported or imported;

After accepting the application for protection, the customs authority shall proceed as follows:

3.1. Disseminate the information on the request for protection to relevant customs units for implementation;

3.2. Inspect goods suspected of infringing copyrights when exported or imported;

Based on the information provided in the application and the accompanying documents for the request for copyright protection, the customs authority where such information is provided shall be responsible for monitoring and inspecting to detect goods suspected of infringing copyrights when exported or imported;

3.3. Issue a decision to temporarily suspend customs procedures;

3.3.1. The Director of the Customs Sub-Department where goods suspected of infringing copyrights when exported or imported are discovered shall issue a decision to temporarily suspend customs procedures (in accordance with the model attached as Appendix 2 to this Circular);

3.3.1.1. In cases where long-term protection applications are implemented, once infringement is confirmed, the customs authority shall issue a decision to temporarily suspend without requiring the applicant to submit an additional application;

3.3.1.2. In cases where case-by-case protection applications are implemented, upon receiving information about a specific consignment, the customs authority shall issue a decision to temporarily suspend based on that case-by-case protection application;

3.3.2. The decision to temporarily suspend shall be issued when the owner of the goods subject to export or import comes to handle customs procedures;

3.3.3. The decision to temporarily suspend customs procedures must be sent to the applicant and the owner of the goods subject to export or import;

3.3.4. The decision on the duration of temporary suspension and extension of the duration of temporary suspension of customs procedures shall be carried out in accordance with Article 14 of Decree No. 101/2001/ND-CP of the Government (Decision to extend the duration of temporary suspension in accordance with the model attached as Appendix 3 to this Circular);

4. Verification of the legal status regarding copyrights and handling of goods temporarily suspended;

Verifying the legal status regarding copyrights of temporarily suspended goods involves inspecting the actual goods, documents, accompanying evidence, and determining whether the exported or imported consignment infringes copyrights;

4.1. Rights and responsibilities of organizations and individuals related to the verification of the legal status regarding copyrights of temporarily suspended goods;

4.1.1. Rights and responsibilities of the applicant for temporary suspension;

4.1.1.1. Request the customs authority to take samples from the temporarily suspended consignment of exported or imported goods to determine whether the consignment infringes copyrights;

4.1.1.2. Present and provide truthful information and evidence to the customs authority to prove that the consignment of exported or imported goods has infringed their copyrights;

4.1.1.3. Produce evidence or conclusions from authorized agencies (if any) to prove that the consignment of exported or imported goods has infringed copyrights before the customs authority;

4.1.2. Rights and responsibilities of the owner of the goods;

4.1.2.1. Request the customs authority to take samples from the temporarily suspended consignment of exported or imported goods to prove that the consignment does not infringe copyrights;

4.1.2.2. Present and provide truthful information and evidence to the customs authority to prove that the consignment of exported or imported goods does not infringe copyrights;

4.1.2.3. Produce evidence or conclusions from authorized agencies to prove that the consignment of exported or imported goods does not infringe copyrights before the customs authority;

4.1.3. Rights and responsibilities of the customs authority;

4.1.3.1. Base the determination of whether the consignment infringes copyrights on the actual goods, evidence, and information obtained;

4.1.3.2. If unable to confirm whether the consignment infringes copyrights, request the applicant for temporary suspension to provide proof;

4.1.3.3. If there is a conclusion from an authorized state agency regarding the legal status of the consignment's copyrights, the customs authority shall handle the matter based on that conclusion;

4.1.4. Rights and responsibilities of cultural and information authorities;

When requested by the customs authority, the Copyright Office of Literature and Arts, Provincial Departments of Culture and Information, and specialized inspection agencies under the Ministry of Culture and Information shall:

4.1.4.1. Participate in reviewing and studying the files and samples of goods;

4.1.4.2. If necessary, establish an appraisal team. Members of the appraisal team may seek opinions from the applicant and the owner of the exported or imported goods;

4.1.4.3. Provide conclusions and recommendations on measures to handle the consignment of exported or imported goods;

4.2. Basis for determining the legal status regarding copyrights of temporarily suspended goods;

4.2.1. Basis for determining that temporarily suspended goods infringe copyrights;

4.2.1.1. Conclusions of authorized state agencies indicating that temporarily suspended goods infringe copyrights (if any); or

4.2.1.2. Evidence provided by the parties allowing the customs authority to determine that temporarily suspended goods infringe copyrights;

4.2.2. Basis for determining that temporarily suspended goods do not infringe copyrights;

Goods subject to temporary suspension shall be considered not to infringe copyrights in the following cases;

4.2.2.1. The person requesting unilateral withdrawal of the Application for Protection or proposing termination of the suspension decision (if any); or

4.2.2.2. The conclusion opinion of the competent authority pointing out that the suspended export and import goods do not infringe copyright (if any); or

4.2.2.3. The expiration of the period specified in the suspension decision, where the applicant fails to provide clear evidence before the customs authority or does not present a conclusion or decision of a competent state agency regarding the infringement of copyright by the suspended export and import goods.

5. Handling after determining the legal status of copyright of suspended export and import goods:

5.1. In case it is determined that the suspended export and import goods infringe copyright;

5.1.1. Basis for handling:

5.1.1.1. The customs authority issues a decision on administrative violation handling against the act of exporting or importing goods infringing copyright in accordance with the law on administrative sanctions in the field of culture and information.

5.1.1.2. In cases where a competent state agency has a decision to handle the act of exporting or importing goods infringing copyright, the customs authority shall implement according to the decision of the competent state agency.

5.1.2. Handling:

When handling, the customs authority shall proceed as follows:

5.1.2.1. Issue a decision on administrative violation handling against the export and import consignment infringing copyright or implement the decision of the competent authority (if any).

5.1.2.2. Compel the violator to pay the costs arising from the suspension of customs procedures and compensate losses to the applicant in accordance with the law.

5.1.2.3. Refund to the applicant the deposit amount paid when applying for protection of copyright under point 1.2 Section III of this Circular.

5.2 In case it is determined that the suspended export and import goods do not infringe copyright;

The Head of the Customs Branch decides:

5.2.1. Continue processing customs formalities for the consignment;

5.2.2. Use the advance payment amount to settle the costs and damages arising from the suspension of the export and import consignment. If the advance payment amount is insufficient to cover these expenses, request the applicant to make up the difference.

5.2.3. For applicants submitting the Application for Protection in accordance with point 1.2 Section III of this Circular; refund the remaining advance payment to the applicant after settling all costs and compensating the exporter/importer's losses.

5.2.4. For applicants submitting the Application for Protection in accordance with point 1.1 Section III of this Circular: Require the applicant to continue making up the advance payment to meet the requirement of advance payment or guarantee as stipulated in point 1.1.5 Section III of this Circular.

6. Handling of certain other situations:

6.1. In case the Court issues a document requesting the customs authority to hand over the suspended export and import goods, the customs authority shall hand over the goods to the Court for handling according to civil or criminal litigation procedures as prescribed by current laws.

6.2. In case the applicant withdraws the application due to an agreement between the applicant and the exporter/importer to resolve the export and import consignment, the customs authority shall require the relevant parties to submit the agreement and accept implementation according to the agreement. After settling all related costs and damages arising from the suspension, the customs authority shall refund the advance payment or guarantee document of the financial institution to the applicant and continue completing the customs formalities for the export and import consignment according to regulations.

IV. COMPLAINTS AND COMPLAINT RESOLUTION

In case the exporter/importer or the copyright owner disagrees with the conclusion on violation handling, they have the right to file a complaint with the competent authority for complaint resolution.

The complaint procedure, time limit; time limit, procedure and jurisdiction for complaint resolution shall be implemented in accordance with the law on complaints and other relevant laws.

V. SUPPORT MEASURES TO ENHANCE THE CAPACITY OF CUSTOMS AUTHORITIES IN COPYRIGHT PROTECTION

1. Strengthening cooperation between copyright owners and customs authorities:

1.1. Copyright owners must take the initiative in providing information related to the copyright requested for protection at customs.

1.2. Cooperate with the customs authority to organize training sessions and training programs for customs officials in identifying legitimate export and import goods and export and import goods infringing copyright.

1.3. Copyright owners may support funding for the customs authority when handling the destruction of export and import consignments infringing copyright.

2. Enhancing knowledge about copyright for customs officials:

The Ministry of Culture - Information, collective management organizations of copyright, authors, and copyright holders have the responsibility to enhance and update knowledge about copyright for customs officials.

3. Building an electronic database for copyright protection:

The Literary and Artistic Copyright Office (Ministry of Culture - Information) and the General Department of Customs (Ministry of Finance) shall cooperate to build a database to serve copyright protection work at customs authorities.

VI. IMPLEMENTATION

1. The General Department of Customs (Ministry of Finance), the Literary and Artistic Copyright Office, and the Specialized Inspection Agency of Culture - Information (Ministry of Culture - Information) are responsible for guiding relevant organizations and individuals in implementing this Circular.

2. Relevant organizations and individuals are responsible for implementing the provisions and guidance set forth in this Circular.

3. This Circular takes effect fifteen days after its publication in the Official Gazette.

4. During the implementation of this Circular, if there are difficulties or unclear contents, relevant individuals and organizations shall promptly report to the Ministry of Culture - Information and the Ministry of Finance for guidance.